Opinion
15-P-1609
03-03-2017
COMMONWEALTH v. Melvin HARRISON.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury-waived trial, the defendant was convicted of unlawful possession of a firearm, and carrying a firearm without a firearm identification card. On appeal, he claims error in the denial of his motion to suppress. We affirm.
The motion judge determined that the defendant was not seized until he was actually physically detained. However, both the Commonwealth and the defendant agree that the defendant was seized for constitutional purposes when Officer Eric Schmidt reached out and touched the defendant's jacket. For the purposes of our discussion and analysis, we will accept that agreement. The defendant claims that at the point when Schmidt touched him, there was no reasonable suspicion to support a stop and frisk, and the attempted seizure was illegal. We disagree.
"An officer has the right to ‘make a threshold inquiry where suspicious conduct gives the officer reason to suspect that a person has committed, is committing, or is about to commit a crime.’ " Commonwealth v. Watson , 430 Mass. 725, 729 (2000), quoting from Commonwealth v. Silva , 366 Mass. 402, 405 (1974). Reasonable suspicion must be based on "specific and articulable facts and the specific reasonable inferences which follow from such facts in light of the officer's experience." Silva , supra at 406. Here, we conclude that the police had reasonable suspicion to believe the defendant was armed based on numerous factors described below, all of which were found by the motion judge to support the actions taken by the police.
Prior to Schmidt's arrival, Officer Omar Borges, a nine-year veteran of the Boston police, was conducting surveillance from an unmarked car of a group of people, including the defendant. The group was on Bower Street in the vicinity of a housing development. That area was a high crime area with a history of firearm activity. Contrary to the defendant's claim, there was sufficient evidence to support that designation. See Commonwealth v. Wilson , 441 Mass. 390, 394 (2004) ; Commonwealth v. Colon , 87 Mass. App. Ct. 398, 402 (2015).
The housing development was bordered by Bower Street, Humboldt Avenue, and Martin Luther King Boulevard.
Borges had personally responded to calls in that area for persons shot and shots fired, and he had made numerous arrests in that area, including five to ten for firearm violations.
Officer Borges had received specialized training through the Federal Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) to enable him to recognize the characteristics of an armed gunman. That training educated Borges on the physical traits and body movements of individuals who carry an unholstered firearm on his person. Borges could properly rely on that experience and training as a factor supporting a reasonable suspicion. See Commonwealth v. Gomes , 453 Mass. 506, 511 (2009).
The ATF curriculum provided that a person carrying an unlicensed firearm often carried it loose, in a pocket or waistband to make it accessible. Borges also learned the physical measures or "security checks" that a person would perform on the unholstered weapon to prevent it from moving or falling from his person. Such "security checks" involve "touching or adjusting the waist numerous times." Borges had implemented that training in at least fifty gun investigations.
During his thirty minutes of surveillance, Borges saw the defendant in a group of five to ten people "milling around" the area. Borges's attention was drawn to the defendant who was looking up and down the streets monitoring traffic and activity in the area. During that time, Borges saw the defendant conduct several "security checks" of his waistband. Based on Borges's training and experience, he recognized the defendant's actions as being consistent with someone adjusting an unholstered firearm lodged in the front of his waistband. See Commonwealth v. Resende , 474 Mass. 455, 461 (2016) (State trooper "observed the defendant holding his hand at his waist in a manner that [the trooper] believed from his training and experience was consistent with someone holding a gun in the waistband of his pants").
As Borges watched the defendant do "security checks" of his waist area, a black Ford Crown Victoria with a livery registration turned onto Bower Street. Although that car was not an unmarked police car, the same make and model is often so used and recognized as such in the community. As soon as the defendant and another from the group saw that car, they turned and ran. Based on those facts, the motion judge drew the inference that the defendant ran because he believed, albeit incorrectly, that it was a police car.
Those unmarked cars are often used by plain clothed Boston police officers who are members of the youth violence strike force as well as other anti-crime units.
While the gait of the other individual running at the sight of the Crown Victoria was unremarkable, the defendant's differed. He ran with one of his arms "pinned to his front waistband while his other hand was freely swinging." See Commonwealth v. Jeudy , 75 Mass. App. Ct. 579, 583 (2009) (Defendant's flight upon seeing the Crown Victoria vehicle, where he "grabbed at his waistband as he ran, ... led [the police officer] to believe, based on his training and experience, that the fleeing defendant possessed a concealed firearm"). Based on Borges's training and experience, the defendant's gait further supported the suspicion that the defendant was carrying a firearm unlawfully. Unlike Commonwealth v. Warren , 475 Mass. 530, 538-539 (2016), where the court held that a black male's flight from the police did not support a reasonable inference of consciousness of guilt, here it was the manner in which the defendant ran with one arm pinned against his waist that supported the suspicion that he was armed.
When Borges followed the defendant and lost sight of him in an alley, he radioed other officers on the other end of the alley and requested they do a field interrogation observation of the defendant. Uniformed Officer Schmidt responded. As Schmidt approached the defendant, the defendant "bladed the right side of his body and pinned the right side of his body with his forearm." Schmidt believed that the defendant was trying to hide something, and he knew that blading was "a common trait [used] when carrying a firearm on the waistband" that minimized the ability to view the weapon and to secure it from movement. See Commonwealth v. DePeiza , 449 Mass. 367, 372-374 (2007). That behavior further added to the suspicion that the defendant was armed.
Officer Schmidt also noted that the defendant appeared to be between eighteen and twenty-two years old, and likely under age twenty-one, making it unlawful for the defendant to carry a firearm. See Commonwealth v. Ware , 76 Mass. App. Ct. 53, 55-56 (2009).
--------
Based on all the above circumstances, the police officers had reasonable suspicion to stop the defendant and attempt to investigate whether he possessed a firearm. As such, the motion judge properly denied the motion to suppress. See Commonwealth v. Garcia , 88 Mass. App. Ct. 307, 311-312 (2015).
Judgments affirmed .